Tucker v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: January 2, 2024
• Docket: 22-6394
• Status: Unpublished

Opinion

22-6394 Tucker v. Garland BIA Straus, IJ A096 713 973

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of January , two thousand twenty-four.

PRESENT: JOHN M. WALKER, JR., REENA RAGGI, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

JIMMY MOHAMMED TUCKER,

Petitioner,

v. No. 22-6394

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________ FOR PETITIONER: GLENN L. FORMICA, Formica, P.C., New Haven, CT.

FOR RESPONDENT: DUNCAN T. FULTON, Trial Attorney (Brian M. Boynton, Principal Deputy Assistant Attorney General, Edward E. Wiggers, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Jimmy Mohammed Tucker, a native and citizen of Jamaica,

petitions for review of an August 1, 2022 decision of the BIA adopting and

affirming a decision of an Immigration Judge (“IJ”) that ordered his removal

pursuant to 8 U.S.C. § 1227(a)(1)(A). In re Jimmy Mohammed Tucker, No. A096 713

973 (B.I.A. Aug. 1, 2022), aff’g No. A096 713 973 (Immigr. Ct. Hartford, Conn., June

4, 2019). Where the BIA adopts and supplements the IJ’s decision, we review the

decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d

268, 271 (2d Cir. 2005). We assume the parties’ familiarity with the underlying

facts and procedural history.

When the Department of Homeland Security (“DHS”) commences removal

proceedings against an alien who has been admitted to the United States, it “bears

2 the burden of establishing that the alien is removable by clear and convincing

evidence.” Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006); see also 8 U.S.C.

§ 1229a(c)(3)(A) (“No decision on deportability shall be valid unless it is based

upon reasonable, substantial, and probative evidence.”). We must uphold the

agency’s determination of removability “unless any rational trier of fact would be

compelled to conclude that the proof did not rise to the level of clear and

convincing evidence.” Zerrei, 471 F.3d at 345 (internal quotation marks omitted).

By Notice to Appear dated March 31, 2017, DHS charged Tucker as

removable pursuant to 8 U.S.C. § 1227(a)(1)(A), which provides that “[a]ny alien

who at the time of entry or adjustment of status was within one or more of the

classes of aliens inadmissible by the law existing at such time is deportable.”

Specifically, DHS asserted that, because Tucker used a fraudulent visa to enter the

United States, he was not admissible at his time of entry or when he later adjusted

to lawful permanent resident status. See 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien

who, by fraud or willfully misrepresenting a material fact, . . . has procured[] a

visa, other documentation, or admission into the United States . . . is

inadmissible.”). Following a hearing, the IJ determined that DHS had met its

burden of establishing Tucker’s removability by clear and convincing evidence.

3 The BIA affirmed.

On appeal, Tucker asserts that the agency failed to provide a full and

reasoned decision, misapprehended the burden of proof necessary to establish

removability, erred in concluding that DHS had met its burden, and violated

Tucker’s due process rights. We address each of Tucker’s contentions in turn.

As a threshold matter, we consider Tucker’s argument that the IJ and the

BIA failed to provide sufficient analysis to facilitate meaningful judicial review in

this case. While it is true that “a certain minimum level of analysis” is required

to enable judicial review of agency decisions, Poradisova v. Gonzales, 420 F.3d 70, 77

(2d Cir. 2005), the agency need not “expressly parse or refute on the record each

individual argument or piece of evidence offered by the petitioner” so long as it

gives “reasoned consideration to the petition[] and ma[kes] adequate findings.”

Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation marks

omitted). Here, the IJ’s decision set forth a thorough statement of facts, including

those relevant to the IJ’s conclusion that Tucker had committed visa fraud. The

IJ noted, for example, that the unique identifying number (the “foil number”) that

appeared on the visa Tucker used to enter the country was in fact issued to a

different Jamaican citizen, that an inspection of the visa revealed certain

4 “discrepancies,” that Tucker “was not issued a visa under his name,” and that

Tucker had previously submitted fake documents in connection with one of his

visa applications. Certified Admin. Record at 58–59. The IJ also explained that

he found Tucker’s testimony that he lawfully obtained the visa “very hard to

believe” and “not convincing” in light of other evidence indicating that the visa

was fraudulent. Id. at 64. In affirming the IJ’s decision, the BIA explained that it

found no clear error in the IJ’s factual findings and that the IJ applied the correct

legal standard as to DHS’s burden of proof; it then rejected Tucker’s arguments on

appeal as unpersuasive. Given this record, the agency’s decisions are more than

adequate to allow for judicial review in this case.

We next address Tucker’s contention that the IJ required DHS to prove his

removability only by a preponderance of the evidence. This is flatly contradicted

by the record. Both the IJ’s decision and the BIA’s decision expressly (and

correctly) recognized DHS’s burden to establish Tucker’s removability by clear

and convincing evidence. There is therefore no basis to conclude that either the

IJ or the BIA applied an incorrect standard in Tucker’s case.

Turning to Tucker’s argument that the agency erred in determining that

DHS met its burden as to removability, we conclude that substantial evidence

5 supports the agency’s finding that Tucker was removable as charged. See Zerrei,

471 F.3d at 345 (“[A]n alien is removable if substantial evidence supports the

finding by clear and convincing evidence.”). Tucker conceded in testimony

before the IJ that his visa was fraudulent, and there is no dispute that Tucker did

not disclose that fact in his application. Nor is there any dispute that Tucker’s use

of a fraudulent visa to obtain entry is material to ascertaining whether he is subject

to removal under section 1227(a)(1)(A). Before the IJ, Tucker disputed only his

awareness that the visa was fraudulent when he entered the United States and

when he applied for adjustment of status. Relying on this testimony, he argues

in his petition to this Court that the record contains insufficient evidence that he

willfully misrepresented that his visa was valid.

Substantial evidence supports the agency’s contrary conclusion. Among

other things, a Form I-213 relied on by the agency identified several irregularities

in connection with Tucker’s visa application, including that he had been denied a

visitor’s visa seven times and that the foil number on his entry visa had been issued

to Clive Anthony Atkinson, a different Jamaican citizen. Other documents relied

on by the agency included a U.S. Citizenship and Immigration Services decision

denying Tucker’s application for naturalization because the visa used to facilitate

6 Tucker’s entry into the United States was fraudulent; a copy of the visa that Tucker

used to enter the United States; a State Department record showing that the foil

number on Tucker’s entry visa was assigned to Atkinson; additional State

Department records indicating that Tucker was denied a visa in November 2002

and submitted false documents in connection with a different visa application,

which was denied in January 2004; and Tucker’s sworn statement that he could

not produce original copies of his passport and entry visa because they had been

stolen, contrary to his subsequent testimony that they had been destroyed in a

flood. 1

On appeal, Tucker argues that it was improper for the IJ to rely on

information in the Form I-213 absent additional evidence corroborating its

contents. However, “[a] Form I-213 is considered presumptively reliable and

admissible even absent the testimony of the officer who prepared it, unless the

reliability of the form is somehow undermined.” Zuniga-Perez v. Sessions, 897

F.3d 114, 119 n.1 (2d Cir. 2018) (internal quotation marks omitted). Moreover, as

1 At various points in his briefing, Tucker argues that DHS failed to carry its burden because it failed to submit State Department records identifying any foil numbers attributable to Tucker. But given that the State Department never granted any of Tucker’s visa applications, it is hardly surprising that the record is bereft of foil numbers linked to him.

7 set forth above, DHS did provide additional documentary evidence substantiating

information contained in the Form I-213 – contrary to Tucker’s contention that it

failed to do so. Because Tucker has failed to demonstrate that the information

contained in this form was unworthy of belief, we discern no error in the IJ’s

reliance on this document. 2

Tucker’s argument that DHS did not demonstrate that he tampered with the

visa or was otherwise aware that the visa was fraudulent likewise fails. The

record reflects that Tucker was denied a visitor’s visa on seven different occasions,

and there is no evidence that any of his visa applications were ever granted. The

record further reflects that Tucker’s last visa application was denied on January

12, 2004 – nearly one year after the issuance of the fraudulent visa that Tucker used

to enter the United States – and that this denial was based in part on the fact that

Tucker submitted fake documents in support of his application. Contrary to

Tucker’s claims, there was ample record evidence indicating that the visa Tucker

2 To the extent that Tucker argues the Form I-213 was unreliable because it provided only an incomplete description of a DHS investigation of Tucker, we note that any information regarding this investigation has no bearing on the question of whether DHS met its burden of proof regarding removability. Furthermore, Tucker’s suggestion that he was wrongly labeled as a primary target of the investigation is insufficient to rebut the presumption that the Form I-213 is reliable. See Zerrei, 471 F.3d at 346 (indicating that a petitioner fails to rebut the presumption of reliability when he “put[s] forth no evidence to contradict or impeach the statements in the report” (internal quotation marks omitted)); see also Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (noting that statements in a brief do not constitute evidence).

8 used to enter the country had been tampered with (e.g., there were visual

discrepancies in the font used and the visa failed a “check digit” calculation used

to detect fraud). What’s more, at the hearing before the IJ, Tucker accepted

responsibility for the fraud, Certified Admin. Record at 206, conceded (through

his counsel) that “the evidence [was] clear that there was some fraud,” id. at 115,

and reiterated in closing (again through counsel) that Tucker “accept[ed]

responsibility for . . . the fraud,” id. at 231. See Hoodho v. Holder, 558 F.3d 184, 192

(2d Cir. 2009) (explaining that, in the normal course, petitioners “are bound by the

concessions of freely retained counsel”). While Tucker’s counsel on appeal

argues that these statements should not be considered to concede knowing fraud,

their plain language – when considered in the context of the full record – sufficed

to permit the IJ to reach just that conclusion. In light of this evidence, we cannot

conclude that any rational trier of fact would be compelled to find that DHS’s

proof failed to meet the clear-and-convincing standard.

Tucker’s final argument – that the IJ’s failure to require disclosure of the

sources underlying the Form I-213 violated his right to due process by denying

him the opportunity to properly confront the evidence against him – is also

unavailing. Our case law makes clear that evidence may be admitted in

9 accordance with due process “if the evidence is probative and its use is

fundamentally fair, fairness in this context being closely related to the reliability

and trustworthiness of the evidence.” Zerrei, 471 F.3d at 346 (internal quotation

marks omitted). As previously explained, a Form I-213 is considered

“presumptively reliable and admissible.” Zuniga-Perez, 897 F.3d at 119 n.1

(internal quotation marks omitted). Here, DHS submitted a copy of the Form

I-213 into evidence in advance of the hearing, thereby giving Tucker a reasonable

opportunity to examine the evidence against him. Despite this, Tucker failed to

put forth any evidence suggesting that the information in the Form I-213 was

erroneous or unreliable or that further development of the record was necessary.

See Zerrei, 471 F.3d at 346. As such, we reject Tucker’s contention that the

admission of the Form I-213 was fundamentally unfair or otherwise not in

accordance with due process.

For the foregoing reasons, the petition for review is DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court